Why China Would Be Wrong to Legalize Surrogacy
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2017-03-08 05:31:17

This article is part three of a series exploring surrogacy in China. Parts one and two can be found here.

Ever since China’s most influential official news outlet, the state-run People’s Daily, recently raised the question of allowing surrogacy, the matter has become the topic of heated debate. Many have argued that the article signals a shift in official attitudes, suggesting that the government intends to legalize surrogacy as part of the recently implemented two-child policy.

While I refuse to engage with the reasons that editors may have had for publishing the piece, I must say I am wholly against any attempt to legalize surrogacy in China. In fact, I believe legal prohibitions against surrogacy should be strengthened, for three main reasons.

First, surrogacy is a serious violation of human nature. It is well-documented in medical and psychological literature that over the course of a pregnancy, a surrogate mother naturally develops an attachment to the child growing inside her. This occurs regardless of her lack of shared genetic material and has more to do with the way the fetus’s bodily systems grow and intertwine with those of the woman carrying it. To then force the woman to hand over that child, to entrust the baby to someone else, is a serious violation of her maternal instincts. Loosening restrictions on surrogacy is no different from encouraging women to abandon, or at least ignore, what their bodies naturally tell them to do.

Second, surrogacy is a risky business that can do genuine harm to a woman’s body. In practice, surrogates risk their lives and health, not to mention the possibility of postpartum depression, weight problems, and the pain of childbirth — all so other people can have a child. Having a baby puts immense stress on the body and mind, and such trauma runs counter to the best interests of the surrogate herself.

Finally, legalizing surrogacy is not a rational response to the present demand for surrogate mothers within China. Only lifting restrictions on commercial surrogacy could possibly meet this demand, because the vast majority of women will only take on the risks of surrogacy if offered some kind of financial incentive. 

Commercial surrogacy is currently illegal in a significant number of the world’s developed countries. Chinese scholars advocating that we legalize surrogacy almost universally throw their weight behind what is known as altruistic surrogacy, in which the mother receives no compensation beyond reimbursement for medical and other expenses. These advocates would, however, maintain the ban on commercial surrogacy.

Loosening restrictions on surrogacy is no different from encouraging women to abandon, or at least ignore, what their bodies naturally tell them to do.

In reality, though, the legalization of altruistic surrogacy will not increase the number of available mothers. Women are the best judges of their own interests and are therefore unlikely to take on the role of a surrogate without adequate financial compensation. While some may ultimately decide to do it anyway, they will represent only a small minority of women. In essence, then, legalizing altruistic surrogacy is a wholly inadequate method of making up for the shortage of willing surrogates. This being the case, why bother legalizing it at all?

I believe that law is the foundation of good governance, and that adherence to the law should form the basis of our approach to the surrogacy issue. There are plenty of opportunities to use the law to positively address the challenges of surrogacy, even as we keep the ban in place. 

To start with, China should update its adoption laws. At present, prospective adoptive parents must meet a host of requirements, including showing that they are “childless,” in order to adopt. Why not eliminate this requirement and give parents who, for whatever reason, are unable to have a second child another option besides surrogacy?

Additionally, when parents place a child for adoption, they typically consider the financial circumstances of any potential adoptive parents. This makes it difficult for middle-class families to adopt, as most parents would prefer that their children go to more financially secure households. China’s Ministry of Civil Affairs should ensure that our laws protect families who meet every other requirement for adoption do not fall victim to the sometimes overly stringent demands of the children’s biological parents.

Next, we should liberalize laws concerning uterus transplantation, a procedure that is just now beginning to show its true potential. Currently, however, transplant surgery still requires official backing on a number of thorny issues before it can go ahead, such as verifying the origins of the organs available for transplant. As medical science becomes more mature, we should modify the law to incentivize womb donations from women who no longer wish to have children. The positive effects of such a policy would be twofold: It would promote further development of transplant technology, and also give women without uteruses or with impaired womb function the chance to have their own children.

Finally, community and institutional support for China’s elderly remains inadequate. This forces the older generation to rely on their children for care. By strengthening old-age insurance measures, the government would calm the fears of childless families who fear having nobody to look after them during their twilight years.

Beyond legal measures, public awareness campaigns will be crucial in reducing the demand for surrogacy. Many people are so set on surrogacy partly because they have been influenced by traditional beliefs demanding that couples continue the family bloodline. The circumstances call for the government to step in and promote more progressive concepts of family as well as greater understanding of reproduction and family organization, so that citizens know the complexities of human fertility and do not see the sustenance of blood ties as the ultimate endgame for happy couples.

Calls to legalize surrogacy are misguided because they fundamentally misconstrue the practice as a one-size-fits-all approach to solving the country’s fertility issues. In doing so, surrogacy advocates ignore both the fact that the practice exploitatively puts women through a huge amount of trauma, and the fact that there are other much more effective ways to fix the problems surrogacy claims to resolve. Liberalizing adoption laws, promoting emerging medical procedures, and raising awareness of fertility issues will not only address the reasons why couples currently choose surrogacy; most importantly, they will also keep women safe.

Translator: Kilian O’Donnell; editors: Hu Sumin and Matthew Walsh.

(Header image: A pregnant woman casts her shadow on a wall in Foshan, Guangdong province, June 15, 2016. Liu Hongqun/VCG)